IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-60204
_____________________
EDGAR RAY DICKEY,
Plaintiff-Appellee,
versus
WALTER BOOKER, Superintendent of
Mississippi State Penitentiary,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi, Jackson
USDC No. 3:95-CV-881-WS
_________________________________________________________________
December 21, 2000
Before JOLLY and DAVIS, Circuit Judges, and RESTANI, Judge.*
PER CURIAM:**
The state of Mississippi appeals from the district court’s
grant of habeas under 28 U.S.C. § 2254 to Edgar Ray Dickey, a
prisoner who was not allowed an out-of-time appeal, despite the
failure of his attorney to inform him of the right to proceed in
forma pauperis. We find that the district court properly
determined that Dickey suffered a constitutional violation and was
*
Judge, U.S. Court of International Trade, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
entitled to habeas relief. Because the constitutional violation
only concerns Dickey’s right to appeal, however, and does not
immediately place his conviction in doubt, Dickey’s remedy is
limited to an out-of-time appeal in the Mississippi state courts,
conditioned on Dickey’s notification of the court of his desire to
appeal.
I
Edgar Ray Dickey was indicted for murder in November of 1990
in the Circuit Court of Copiah County. After his first trial
resulted in a mistrial, he was convicted of the lesser charge of
manslaughter in April of 1991. On May 2, 1991, he was sentenced to
a term of twenty years. According to Mississippi law, Dickey had
thirty days from the date of his sentencing, or until June 1, 1991,
to file a notice of appeal. Dickey did not file a timely appeal.
Dickey first attempted to file an out-of-time appeal in
September 1991, but his petition was denied. After both an appeal
and a habeas petition, Dickey again petitioned the Copiah Circuit
Court for permission to file an out-of-time appeal in 1993. He
argued that he had been denied the right to appeal because of
ineffective assistance of counsel. He claimed that he had asked
his attorney, William Ferguson, to appeal the conviction and was
under the impression that the appeal would be perfected. The court
denied Dickey’s request for an out-of-time appeal after an
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evidentiary hearing in which it reviewed a series of letters from
Ferguson. The letters set out the amount of money requested by
Ferguson to proceed with the appeal, but did not mention appealing
in forma pauperis until after the period in which to file a timely
appeal had run. The court found that the letters showed that
Dickey was aware of the importance of filing an appeal, and that
there were no grounds for an out-of-time appeal. The court also
denied a request for reconsideration.
On appeal to the Mississippi Supreme Court, Dickey argued that
his counsel was ineffective because his attorney had told him only
of the costs of appealing, and had never told him of the option of
appealing in forma pauperis. The Mississippi Supreme Court
affirmed the trial court, ruling that Dickey had failed to show
grounds for an out-of-time appeal. The court found that no
agreement regarding an appeal had been reached between Dickey and
his attorney, and thus Ferguson had not rendered ineffective
assistance of counsel by failing to file a notice of appeal.
Dickey then sought federal habeas relief under 28 U.S.C.
§ 2254. The magistrate judge ordered an evidentiary hearing and
appointed counsel for Dickey. Both parties agreed, however, that
the matter could be resolved with the submission of affidavits from
Dickey and Ferguson, without an additional hearing. The magistrate
judge found that Dickey’s counsel rendered constitutionally
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ineffective assistance by failing to inform Dickey of his right to
proceed in forma pauperis.1 The magistrate judge therefore
recommended releasing Dickey from prison unless the state court
allowed Dickey to file an out-of-time appeal and proceed in forma
pauperis with appointed counsel within thirty days.
The district court adopted the magistrate judge’s report on
March 17, 1999. The state filed a notice of appeal on March 23,
1999, as well as a motion to stay order pending appeal. The motion
to stay was terminated as moot on March 20, 2000, after Dickey was
released from prison on completion of his sentence. The state then
filed a motion to dismiss the case for lack of jurisdiction, or for
mootness, but the district court ruled that it lacked jurisdiction
to rule on the state’s motion after an appeal was filed.
At the time of this appeal, Dickey’s whereabouts were unknown
by both the state of Mississippi and Dickey’s counsel. Dickey’s
counsel has continued to represent him, and advised the court at
oral argument that she thought he could be contacted.
II
1
The magistrate judge, in accordance with Martin v. Texas,
737 F.2d 460, 462 (5th Cir. 1994), noted that “[t]he Fifth Circuit
has stated in no uncertain terms that the failure on counsel’s part
to inform a defendant of his right to appointed counsel on appeal
if indigent constitutes ineffective assistance and requires that
habeas relief be granted.” The parties do not contest this point
on appeal.
4
Dickey completed his sentence and was released from prison on
November 18, 1999. The state argues that Dickey’s release from
prison moots this appeal, because the relief sought in the habeas
petition, release from confinement, has been achieved. Even though
Dickey was released prior to this appeal, however, his appeal
satisfies the case or controversy requirement if there exists “some
concrete and continuing injury other than the now ended
incarceration or parole.” Spencer v. Kemna, 523 U.S. 1, 7 (1998).
The Supreme Court presumes that “a wrongful criminal conviction has
continuing collateral consequences.” Id. at 8. Dickey asserts
that the presumption of collateral consequences applies to him
because he is contesting his criminal conviction through his right
to appeal. As a convicted felon, Dickey is barred from a variety
of activities. He cannot hold certain offices, engage in
particular businesses or professions, possess firearms, vote or
serve as a juror in Mississippi. Assuming he was not allowed to
appeal due to ineffective assistance of counsel, he suffers the
consequences of a criminal conviction, and his appeal is therefore
not moot.
III
On appeal, the state does not contest that Dickey would be
entitled to habeas if his attorney failed to inform him of the
right to appeal in forma pauperis. Instead, the state argues that
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the district court failed to give the Mississippi Supreme Court’s
factual findings a presumption of correctness as required under 28
U.S.C. § 2254, and that the district court improperly weighted
Dickey’s affidavit over the affidavit of his former attorney.
We review the district court’s findings of fact for clear
error and its rulings on issues of law de novo. Little v. Johnson,
162 F.3d 855, 859 (5th Cir. 1998). A finding of fact is clearly
erroneous when the appellate court is left with the firm and
definite conviction that a mistake has been committed, even if
there is enough evidence to support the district court’s
determination. Meanes v. Johnson, 138 F.3d 1007, 1010 (5th Cir.
1998). Under the pre-AEDPA version of § 2254,2 federal courts must
give state courts’ findings of fact a presumption of correctness
unless enumerated exceptions apply, such as a failure to resolve
the merits of the factual dispute in the state court hearing, or a
failure to adequately develop the material facts at the state court
hearing. See 28 U.S.C. § 2254(d)(1)&(3)(pre-AEDPA).
The state argues that the district court erred in not giving
a presumption of correctness to the Mississippi Supreme Court’s
findings that there was a lack of evidence to support the motion
for an out-of-time appeal, and that Dickey’s attorney’s performance
2
Dickey’s habeas petition was filed before the effective date
of the AEDPA, and thus must be considered under pre-AEDPA law.
Lindh v. Murphy, 521 U.S. 320, 336 (1997).
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was not deficient. Although, under the pre-AEDPA law, the ultimate
conclusion on ineffective assistance of counsel is not entitled to
deference in federal court, the state court’s subsidiary findings
of fact and credibility are entitled to a presumption of
correctness. Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).
Dickey argues, and the magistrate judge found, however, that
the presumption does not apply because the Mississippi court never
addressed the factual question of whether Dickey was informed of
his right to appeal in forma pauperis. Thus, the presumption of
correctness does not apply because the “merits of the factual
dispute were not resolved in the State court hearing.” 28 U.S.C.
§ 2254(d)(1)(pre-AEDPA). We agree. The state court determination
does not seem to have resolved the merits of the factual dispute or
adequately developed the material facts with respect to the failure
to inform Dickey of the right to appeal in forma pauperis. Because
there was no state court finding on the issue, the district court
did not err in failing to apply a presumption of correctness.
The district court also did not err in its evaluation of the
affidavits of Dickey and Ferguson. Dickey’s affidavit stated that
he was not informed of his right to appeal in forma pauperis before
the appeal’s period had run. Ferguson’s affidavit stated that he
did not remember whether he had informed Dickey of his rights, but
that his usual practice was to inform clients of the option of
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appealing in forma pauperis. Although the state contends that one
statement in Dickey’s affidavit is untrue, and that Ferguson is a
more credible affiant, neither of these contentions affect the core
of the magistrate judge’s ruling: Ferguson does not remember
informing Dickey of his right to appeal in forma pauperis. Thus,
the district court’s finding that Dickey was not informed of his
right to appeal in forma pauperis is not clearly erroneous.
III
Although it seems clear that Dickey was deprived of his
constitutional right to appeal by not being informed of the
opportunity to appeal in forma pauperis, the appropriate remedy is
less obvious. The constitutional right that was violated, the
right to contest the conviction on appeal, is not a direct
challenge to the validity of the conviction. Thus, the remedy
should be limited to the grant of an out-of-time appeal in the
Mississippi state courts.
Furthermore, Dickey was released from prison, and his
whereabouts are currently unknown. Despite the collateral
consequences of his criminal conviction, Dickey has not directly
expressed an interest in appealing that conviction after his
release from prison. To ensure that he is still interested in an
appeal, our granting of an out-of-time appeal is conditioned on
Dickey’s notification of this court, in writing and personally
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executed, that he wishes to exercise his right of appeal. This
notification must be filed with the clerk of our court on or before
thirty days after the issuance of this opinion. If Dickey does
pursue an appeal, the appeal must be filed in the state courts of
Mississippi within ninety days of the issuance of this opinion. No
extensions on these time limits will be granted. If Dickey fails
to meet any of these time limits, the district court is directed to
dismiss his federal habeas petition with prejudice.
IV
Because the case is not moot, and because the district court
did not err in determining that Dickey suffered a constitutional
violation entitling him to habeas relief, we conditionally AFFIRM
the district court’s order requiring that Dickey be afforded an
out-of-time appeal in the Mississippi state courts. This relief,
however, is conditioned on Dickey’s notification of the clerk of
this court within thirty days, and his appeal in the Mississippi
court within ninety days of this opinion, as we have noted above.
AFFIRMED CONDITIONALLY.
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